Overtime law is one of the areas where South Dakota diverges most dramatically from the rest of the country. While federal law under the Fair Labor Standards Act (FLSA) only requires overtime after 40 hours in a workweek, South Dakota mandates overtime pay on a daily basis — after just 8 hours in a single workday. South Dakota also requires double-time pay in situations where federal law does not, and imposes unique rules for the 7th consecutive day of work in a workweek.
If you employ workers in South Dakota, you must comply with both federal and South Dakota overtime rules — and where they conflict, you must follow whichever is more favorable to the employee. In practice, that almost always means following South Dakota's stricter requirements.
South Dakota overtime rules are stricter than federal rules in almost every respect. If you only follow federal FLSA guidelines, you are almost certainly underpaying your South Dakota employees and exposing your business to significant wage-and-hour liability.
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Federal FLSA Overtime Rules
The Fair Labor Standards Act (FLSA) is the federal law governing minimum wage, overtime, and other workplace standards. Under the FLSA, overtime rules are straightforward:
- Overtime threshold: Non-exempt employees must receive overtime pay at 1.5 times their regular rate of pay for all hours worked over 40 in a workweek.
- No daily overtime: Federal law does not require overtime based on daily hours. An employee could work 12 hours on Monday and 4 hours on Tuesday (16 total) with zero overtime under federal law, because the weekly total is under 40.
- No double-time: Federal law has no concept of double-time pay. The maximum overtime rate under the FLSA is 1.5x.
- Workweek definition: A workweek is any fixed, recurring period of 168 hours (seven consecutive 24-hour periods). Employers can define the workweek start day, but once set, it must remain consistent.
Even though South Dakota has stricter rules, the federal FLSA still applies as a floor. You cannot pay less than what federal law requires. South Dakota law builds on top of federal requirements — it never reduces them.
South Dakota Overtime Rules (Stricter Than Federal)
South Dakota Labor Code Sections 510 and 511, along with the applicable Industrial Welfare Commission (IWC) Wage Orders, establish overtime requirements that go far beyond the FLSA. Here are the key differences:
Daily Overtime
This is the biggest difference from federal law. in South Dakota, non-exempt employees earn overtime based on hours worked in a single day:
- Over 8 hours in a workday: Pay at 1.5x the regular rate for all hours beyond 8, up to 12 hours.
- Over 12 hours in a workday: Pay at 2x the regular rate (double-time) for all hours beyond 12.
Weekly Overtime
South Dakota also requires overtime after 40 hours in a workweek, just like federal law. However, hours that already qualified for daily overtime still count toward the 40-hour weekly threshold. The employee receives whichever overtime rate is higher — daily or weekly — but not both stacked on the same hours.
For example: An employee works 9 hours each day, Monday through Thursday (36 hours total), then 6 hours on Friday. The total is 42 hours. The employee receives:
- 1 hour of daily overtime each day Mon–Thu (4 hours at 1.5x)
- 2 hours of weekly overtime on Friday (since the 41st and 42nd hours exceed 40/week)
- Total overtime: 6 hours at 1.5x
South Dakota Double-Time Rules
Double-time is a South Dakota-specific requirement with no federal equivalent. Employers must pay 2x the regular rate in two situations:
- Over 12 hours in a single workday: All hours worked beyond the 12th hour in any workday must be paid at double-time.
- Over 8 hours on the 7th consecutive day: If an employee works 7 consecutive days in a workweek, all hours worked beyond 8 on the 7th day must be paid at double-time (the first 8 hours on the 7th day are paid at 1.5x).
Many employers are unaware that South Dakota requires double-time pay. This is one of the most common sources of wage-and-hour lawsuits in the state. If you have employees working 12+ hour shifts or 7-day workweeks, double-time rules apply regardless of whether the employee volunteered for the extra hours.
7th Consecutive Day Rules
South Dakota has a special overtime provision for employees who work seven consecutive days in a single workweek:
- First 8 hours on the 7th consecutive day: Paid at 1.5x the regular rate.
- Hours beyond 8 on the 7th consecutive day: Paid at 2x the regular rate (double-time).
Important clarifications about the 7th-day rule:
- The "7th consecutive day" is determined by the workweek, not the calendar week. If your workweek runs Sunday–Saturday and an employee works every day from Sunday through Saturday, Saturday is the 7th day.
- The 7th-day premium applies even if the employee worked fewer than 40 total hours during the week.
- Working even a few minutes on a day counts as having "worked" that day for purposes of the 7th-day rule.
Federal vs. South Dakota: Side-by-Side Comparison
| Rule | Federal (FLSA) | South Dakota |
|---|---|---|
| Weekly OT threshold | Over 40 hrs/week | Over 40 hrs/week |
| Daily OT threshold | None | Over 8 hrs/day at 1.5x |
| Double-time | None | Over 12 hrs/day at 2x |
| 7th consecutive day | No special rule | 1.5x first 8 hrs, 2x after |
| OT rate | 1.5x only | 1.5x and 2x |
| Exempt salary threshold (2026) | $1,128/week ($58,656/yr) | $66,560/year |
Exempt vs. Non-Exempt Employees
Not every employee is entitled to overtime. Both federal and South Dakota law recognize certain exemptions for employees who meet specific criteria. If an employee qualifies as "exempt," they are not entitled to overtime pay regardless of how many hours they work.
The Three-Part Test for Exemption
To classify an employee as exempt under South Dakota law, all three conditions must be met:
- Salary basis test: The employee must be paid a fixed salary that does not vary based on hours worked or quality/quantity of work.
- Salary level test: The salary must meet the minimum threshold (see 2026 thresholds below).
- Duties test: The employee's primary duty must involve executive, administrative, or professional work as defined by law. Spending more than 50% of work time on non-exempt duties generally disqualifies the exemption under South Dakota law.
Under federal law, an employee can qualify as exempt if their "primary duty" is exempt work — even if they spend less than 50% of their time on it. South Dakota requires that the employee spend more than 50% of their working time on exempt duties. This quantitative standard means fewer employees qualify as exempt in South Dakota than under federal law alone.
Common Exempt Categories
- Executive exemption: Manages a department or subdivision, regularly directs the work of at least two full-time employees, has authority to hire/fire or recommend such actions.
- Administrative exemption: Performs office or non-manual work directly related to management or business operations, regularly exercises independent judgment and discretion on significant matters.
- Professional exemption: Work requiring advanced knowledge in a field of science or learning, customarily acquired through prolonged education (e.g., doctors, lawyers, engineers, architects).
- Computer professional exemption: Applies to software engineers, programmers, and similar roles. South Dakota has a specific hourly rate threshold of $55.58/hour (or $115,763.35/year) for 2026.
- Outside sales exemption: Employees who customarily and regularly work away from the employer's place of business making sales. No salary threshold required, but must spend more than 50% of time in outside sales activities.
2026 Salary Thresholds for Overtime Exemption
One of the most critical numbers for employers is the minimum salary required to classify an employee as exempt from overtime. Both federal and South Dakota law set these thresholds, and they change periodically.
Federal Salary Threshold (2026)
The federal minimum salary for the executive, administrative, and professional exemptions is $1,128 per week, which equals $58,656 per year. This threshold was updated as part of the Department of Labor's rulemaking process.
South Dakota Salary Threshold (2026)
South Dakota's exempt salary threshold is twice the state minimum wage for full-time employment (40 hours/week). With the 2026 South Dakota minimum wage at $16.50/hour:
- $16.50/hour x 2 = $33.00/hour
- $33.00/hour x 2,080 hours/year = $68,640/year
- That is approximately $1,320 per week or $5,720 per month
Some South Dakota employment attorneys argue that the exempt salary threshold should be based on the local minimum wage, not just the state minimum. While this interpretation is debated, if your employees work in a city like San Francisco ($18.67/hr), the implied exempt threshold could be as high as $18.67 x 2 x 2,080 = $77,667/year. Consult an employment attorney for guidance specific to your situation.
Common Overtime Mistakes South Dakota employers Make
Overtime violations are the single largest source of wage-and-hour lawsuits in South Dakota. Here are the mistakes we see most frequently:
1. Ignoring Daily Overtime
This is the most common mistake, especially for employers who relocated from other states. in South Dakota, an employee who works 10 hours on Monday earns 2 hours of overtime that day — even if they only work 30 total hours that week. Many payroll systems default to federal (weekly-only) overtime. Make sure yours is configured for South Dakota daily overtime.
2. Misclassifying Employees as Exempt
Giving someone a salary and a "manager" title does not make them exempt. They must meet all three exemption criteria: salary basis, salary level, and duties test. in South Dakota, the employee must spend more than 50% of their time on exempt duties. A "shift manager" who spends most of their time serving customers or stocking shelves is likely non-exempt.
3. Forgetting the 7th-Day Rule
Many employers do not realize that working any amount of time on the 7th consecutive day triggers premium pay. Even a 2-hour shift on the 7th day must be paid at 1.5x. If the employee works over 8 hours on that 7th day, hours beyond 8 are at 2x.
4. Not Tracking All Hours Worked
Under South Dakota law, all time an employee is "suffered or permitted to work" must be compensated — including time spent answering emails after hours, working through lunch breaks, or arriving early to set up. If you know or should have known the employee was working, the time must be paid, including at overtime rates.
5. Averaging Hours Across Weeks
You cannot average hours across a two-week pay period to avoid overtime. Each workweek stands alone. If an employee works 50 hours in week one and 30 hours in week two, they are owed 10 hours of overtime for week one — you cannot offset with the lighter week two.
6. Failing to Include All Compensation in the Regular Rate
The "regular rate" used to calculate overtime must include not just the base hourly wage, but also non-discretionary bonuses, shift differentials, piece-rate earnings, and certain commissions. Calculating overtime on the base rate alone results in underpayment.
The penalties for overtime violations in South Dakota are steep: up to $100 per employee for the first violation and $200 per employee for subsequent violations plus 25% of the unpaid wages. In class-action lawsuits, these numbers multiply quickly. Investing in proper payroll software that handles South Dakota overtime automatically is far cheaper than defending a wage claim.
How to Calculate South Dakota Overtime: A Step-by-Step Example
Let us walk through a real-world example. Say your employee, Maria, earns $20/hour and works the following schedule in one workweek:
- Monday: 10 hours
- Tuesday: 9 hours
- Wednesday: 8 hours
- Thursday: 13 hours
- Friday: 6 hours
- Saturday: Off
- Sunday: Off
Total hours: 46
Step 1: Calculate daily overtime.
- Monday: 8 regular + 2 hours at 1.5x = $160 + $60 = $220
- Tuesday: 8 regular + 1 hour at 1.5x = $160 + $30 = $190
- Wednesday: 8 regular = $160
- Thursday: 8 regular + 4 hours at 1.5x + 1 hour at 2x = $160 + $120 + $40 = $320
- Friday: 6 regular = $120
Step 2: Check weekly overtime. Maria worked 46 total hours. She has 6 hours over the 40-hour weekly threshold. However, she already received daily overtime for 7 hours (2 + 1 + 0 + 5 + 0). Since 7 daily OT hours exceeds the 6 weekly OT hours, no additional weekly overtime is owed — the daily overtime already covers it.
Step 3: Total weekly pay. $220 + $190 + $160 + $320 + $120 = $1,010
Compare this to what Maria would earn under federal rules alone: 40 hours at $20 + 6 hours at $30 = $800 + $180 = $980. The South Dakota calculation yields $30 more because of daily overtime and double-time on Thursday's 13th hour.
Manually calculating South Dakota overtime for every employee every pay period is error-prone and time-consuming. Payroll platforms like automatically apply South Dakota's daily overtime, weekly overtime, and double-time rules — reducing your risk and saving hours of administrative work. See our Best Payroll Software for 2026 guide for a full comparison.
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Legal & Tax Disclaimer
This article is for general informational purposes only and does not constitute legal, tax, or professional advice. Employment laws, tax regulations, and compliance requirements change frequently. The information on this page reflects our understanding as of the date noted above and may not reflect recent changes in federal or South Dakota state law.
Do not act or refrain from acting based solely on the information in this article. Always consult a qualified attorney, CPA, or HR professional familiar with South Dakota law before making payroll or compliance decisions for your business.